Confederated Salish and Kootenai v. Clinch

• Decision Date: 12 March 2007
• Docket Number: No. 04-042.,04-042.
• Citation: 2007 MT 63,336 Mont. 302,158 P.3d 377
• Parties: CONFEDERATED SALISH AND KOOTENAI TRIBES, Petitioners and Respondents, v. Bud CLINCH, Director, Montana Department of Natural Resources and Conservation, and The Department of Natural Resources and Conservation, Respondents and Appellants.
• Court: Montana Supreme Court

158 P.3d 377

2007 MT 63

336 Mont. 302

CONFEDERATED SALISH AND KOOTENAI TRIBES, Petitioners and Respondents, v. Bud CLINCH, Director, Montana Department of Natural Resources and Conservation, and The Department of Natural Resources and Conservation, Respondents and Appellants.

No. 04-042.

Supreme Court of Montana.

Argued and Submitted January 12, 2005.

Decided March 12, 2007.

Rehearing Denied May 25, 2007.

For Appellants: Tim D. Hall (argued), Department of Natural Resources and Conservation, Helena, Montana.

For Respondents: John B. Carter (argued), Tribal Legal Department, Pablo, Montana, James H. Goetz (argued), Goetz, Gallik & Baldwin, P.C., Bozeman, Montana.

For Amici Curiae: Harley R. Harris (argued), Helena, Montana (Heart of Sky Ranch, et al.), Donald D. MacIntyre, Helena, Montana (Lake County Commissioners), Terryl T. Matt and David Gordon, Browning, Montana (Blackfeet Tribe), John M. Shontz, Helena, Montana (Northwest Montana Association of Realtors), Michael S. Kakuk, Helena, Montana (Montana Legislators).

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Bud Clinch, Director of the Montana Department of Natural Resources and Conservation (DNRC), and the DNRC appeal from the order of the First Judicial District Court, Lewis and Clark County, granting summary judgment in favor of the Confederated Salish and Kootenai Tribes (Tribes). We reverse and remand for further proceedings.

¶ 2 We consider the following issue on appeal:

¶ 3 Can DNRC process applications to change the use of state appropriative water rights on the Flathead Reservation prior to quantification of the Tribes' reserved rights?

BACKGROUND

¶ 4 James and Katherine Axe, non-Indian owners of two appropriative water rights on the Flathead Indian Reservation (Reservation), applied to the DNRC to change the use of those water rights from irrigation to recreation so that they could operate a water ski pond. The Tribes brought suit against DNRC to enjoin it from processing the change application. The District Court granted a temporary restraining order followed by a preliminary injunction preventing DNRC from conducting any proceeding pertaining to the Axes' application. After unsuccessful negotiations between the Tribes and DNRC, the District Court ultimately granted summary judgment in favor of the Tribes and issued a permanent injunction. The District Court concluded that DNRC could not determine whether the Axes' proposed change would adversely affect the use of the Tribes' rights in the absence of a quantification of the Tribes' reserved rights. DNRC appeals.

STANDARD OF REVIEW

¶ 5 We articulated the standard of review for grants of summary judgment in Grimsrud v. Hagel, 2005 MT 194, ¶ 14, 328 Mont. 142, ¶ 14, 119 P.3d 47, ¶ 14 (citations and quotation marks omitted):

This Court's review of a district court's grant of summary judgment is de novo. Our evaluation is the same as that of the trial court. We apply the criteria contained in Rule 56, M.R.Civ.P. According to this rule, the moving party must establish both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. If this is accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. If the court determines that no genuine issues of fact exist, the court must then determine whether the moving party is entitled to judgment as a matter of law.

¶ 6 This Court reviews a district court's conclusions of law for correctness. Galassi v. Lincoln County Bd. of Com'rs, 2003 MT 319, ¶ 7, 318 Mont. 288, ¶ 7, 80 P.3d 84, ¶ 7.

DISCUSSION

¶ 7 Can DNRC process applications to change the use of state appropriative water rights on the Flathead Reservation prior to quantification of the Tribes' reserved rights?

¶ 8 In State ex rel. Greely v. Confederated Salish & Kootenai Tribes, 219 Mont. 76, 712 P.2d 754 (1985), this Court described the two kinds of water rights at issue here:

State appropriative water rights and Indian reserved water rights differ in origin and definition.

. . . .

Appropriative rights are based on actual use. Appropriation for beneficial use is governed by state law. Reserved water rights are established by reference to the purposes of the reservation rather than to actual, present use of the water. The basis for an Indian reserved water right is the treaty, federal statute or executive order setting aside the reservation.

Greely, 219 Mont. at 89-90, 712 P.2d at 762.

¶ 9 DNRC argues that the Axes have a fundamental constitutional right to change the use of their appropriative water rights. Additionally, DNRC contends that the District Court erred in granting summary judgment because genuine issues of material fact remained pertaining to whether the change of use would adversely affect the use of the Tribes' reserved water rights. In support of its argument, DNRC maintains that in § 85-2-402, MCA, the Legislature has specifically provided for the processing of water use change applications prior to a final adjudication of the Tribes' reserved rights.

¶ 10 The Tribes respond that their reserved water rights are senior to all state appropriative water rights on the Reservation and, further, that all state appropriative claims are merely "claims" and not "rights." Without a final quantification of the Tribes' reserved rights, the Tribes contend that it is impossible to determine whether a change in the use of an existing "claim will adversely affect the use of the Tribes' rights under the standard in § 85-2-402(2)(a), MCA.¹ The Tribes also argue that change of use proceedings are improper piecemeal adjudications prohibited by the McCarran Amendment, codified at 43 U.S.C. § 666, and that they should not have to intervene in multiple change of use proceedings — which are separate from and in addition to a comprehensive adjudication of rights—in order to ensure that their rights are not infringed.

¶ 11 At oral argument, the parties focused on the McCarran Amendment's relevance to the issue before this Court, so we will begin our analysis there. After interpreting and applying the McCarran Amendment to the instant case, we will discuss the complex jurisprudence relating both to the Amendment and to tribal sovereignty, and we will apply that jurisprudence to this matter. Finally, we will conclude with a comment on the so-called "trilogy" of our cases — Ciotti, Clinch, and Stults²—that address closely related issues and explain what our holding here means in the context of those decisions.

I. The McCarran Amendment.

¶ 12 Title 43, Section 666, United States Code (enacted July 10, 1952, c. 651, Title II, § 208(a)-(c), 66 Stat. 560.), commonly known as the McCarran Amendment due to its sponsorship by Nevada Senator Pat McCarran, reads as follows:

§ 666. Suits for adjudication of water rights

(a) Joinder of United States as defendant; costs. Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.

(b) Service of summons. Summons or other process in any such suit shall be served upon the Attorney General or his designated representative.

(c) Joinder in suits involving use of interstate streams by State. Nothing in this section shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream.

¶ 13 A plain reading of the statute's text indicates that the United States has waived its sovereign immunity so that it may be joined as a defendant when it is a necessary party in cases seeking to adjudicate or administer water rights in state courts.³ The United States Supreme Court has interpreted this waiver to extend to the Indian tribes, providing consent to determine in state court federal reserved water rights held on behalf of Indians. Colorado River Water Cons. Dist. v. U.S., 424 U.S. 800, 809, 96 S.Ct. 1236, 1242, 47 L.Ed.2d 483 (1976). The Amendment's waiver is not for purposes of private suits against the United States or the Indian tribes; rather, it is limited to comprehensive state adjudications of water rights. Dugan v. Rank, 372 U.S. 609, 618, 83 S.Ct. 999, 1005, 10 L.Ed.2d 15 (1963); U.S. v. District Court for Eagle County, 401 U.S. 520, 525, 91 S.Ct. 998, 1002, 28 L.Ed.2d 278 (1971); U.S. v. District Court for Water Div. No. 5, 401 U.S. 527, 529, 91 S.Ct. 1003, 1005, 28 L.Ed.2d 284 (1971).

¶ 14 In support of their argument that change of use proceedings are improper "piecemeal" adjudications, the Tribes contend that, according to judicial interpretation of the McCarran Amendment,

DNRC has no jurisdiction over the Tribes and their water rights except within the context of a general inter sese water rights adjudication that satisfies McCarran requirements. Absent a proper McCarran adjudication, the Tribes, retain sovereign immunity from all DNRC proceedings. Greely, 219 Mont. at 84-85, 712 P.2d at 759; Stults, ¶¶ 38-39.

It is not entirely clear what the Tribes mean. In the...